Republican Confidence in Election Administration Up in 2022 Compared to 2020, But There’s a Ways to Go on Mail-in Balloting

The Voting Wars

Pew Research Center:

Voters are generally confident ballots were counted accurately in this year’s election, yet they express greater confidence in in-person ballots being counted accurately than they do in counts for absentee or mail-in ballots. Republican voters are more skeptical than Democratic voters that votes were counted accurately – particularly for absentee ballots.

Overall, most voters say they are confident that votes cast in person at polling places were counted as voters intended this year: 86% say they are at least somewhat confident that votes cast in person were counted accurately, including about half (49%) who are very confident.

Three-quarters of Republican voters and 97% of Democratic voters say they are at least somewhat confident in-person ballots were counted accurately. Democratic voters are about three times as likely as GOP voters to say they are very confident in these counts (74% vs. 26%).

Republican voters’ confidence in the counting of in-person ballots this year is higher than Trump voters’ confidence in these counts in 2020: Two years ago, 64% of Trump voters were at least somewhat confident that in-person votes were counted accurately.

Nearly all Democratic voters (97%) say they are confident that in-person votes were counted as voters intended, which is little different from the opinions of Biden voters in 2020 (98% were very or somewhat confident).

Voters today are somewhat more confident this year than they were two years ago that absentee or mail-in ballots were counted as voters intended, with Republican voters driving this increase in confidence.

Overall, two-thirds of voters say they are very (35%) or somewhat (31%) confident that absentee or mail-in ballots were counted accurately this year, compared with 59% who said this in 2020.

The share of Republican voters who say they are confident that mail-in ballots were counted as voters intended this year (41%) is about twice the share of Trump voters who said this following the 2020 election (19%).

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The ISLT:  How State Statutes and State Constitutions Differ

Uncategorized

With the argument coming up next week in Moore v. Harper, I’ve thought more deeply about some of the less obvious legal issues underlying the case.  I plan to do a few posts on these issues.

At least several Justices on the Court are surely inclined to endorse the version of the ISLT that was expressed in Bush v. Gore’s three-Justice concurrence, which then-Chief Justice Rehnquist wrote.  This version is about federal constitutional constraints on state actors – such as judges or election administration officials – when they interpret and apply state statutes that regulate federal election.  In this version, state actors cannot depart from what “a fair reading” of the state election code provides.  This version is not about whether state constitutions can constrain state statutes regulating federal elections and is not directly at issue in Moore.  Nonetheless, it makes sense to consider how to think about the implications of the Bush v. Gore concurrence for the issue directly involved in Moore.

The question I want to raise can be put this way:  if I’m a Justice inclined to accept the Bush v. Gore concurrence’s version of the ISLT, does that logically mean I must also believe state courts similarly cannot depart from what “a fair reading” of the state’s constitution provides in judging the constitutionality of state statutes that regulate federal elections?  But here, a dramatic difference between statutes and constitutions as sources of law must be considered.  State statutes will generally be far more specific and detailed, with provisions that interact with other provisions in the statute, than state constitutions.  In the federal context, compare the difference between Title VII, or the 1964 Civil Rights Act as a whole, with the Equal Protection clause.  Because statutory law generally tends to be much more specific, more fully fleshed out, much more detailed, and because individual provisions work together as part of what the Bush v. Gore concurrence called a “legislative scheme,” state election statutes provide much firmer traction than state constitutional provisions for judging what constitutes a “fair reading” of the source of law.  To shift the metaphor, state statutes can anchor judgments of what constitutes departing “too far” from the statutory text and scheme than can most state (or federal) constitutional provisions.

General or broad state constitutional provisions take on more determinate content through the development of precedents.  The text of these provisions is frequently so general that by itself, it does not provide a deep anchor for judgments of what constitutes a “fair reading:” that’s what judges on a state’s highest court frequently disagree about.  But it’s also the case that these provisions might not have been applied all that often to state election statutes that regulate federal elections.  Here is another difference with state statutes:  state election statutes are routinely applied to a range of elections and thus a substantial body of interpretation is much more likely to have developed over years to implement these statutory provisions.  Once again, that provides a much deeper anchor for judging when state actors have departed from a “fair reading” of the statutory framework than from a broad state constitutional provision.  A “plain meaning” rule for statutory terms, for example, is easier to envision than a “plain meaning” rule for highly general constitutional provisions.

If the Court is going to hold that state constitutional provisions cannot be applied at all to these statutes, none of this is relevant.  But for Justices who conclude state constitutional provisions can be enforced, but who wonder whether the principle from the Bush v. Gore concurrence should be extended to state judicial interpretation of state constitutional provisions – so that interpretations that depart from a “fair reading” of the state provisions violate the federal constitution – these significant differences between statutes and constitutions as sources of law need to be considered.

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“Elon Musk’s promised Twitter exposé on the Hunter Biden story is a flop that doxxed multiple people”

cheap speech

The Verge:

Free-speech crusader Elon Musk isn’t happy with Twitter’s years-old decision to suppress a news story about Hunter Biden’s laptop just ahead of the 2020 presidential election. So in an effort “to restore public trust” in Twitter, Musk indicated last month that he would release internal communications showing how it all went down.

That arrived Friday night in the form of a lengthy and arduously slow tweet thread (it took a full two hours to complete) from journalist Matt Taibbi, who Musk appears to have leaked the documents to and coordinated for his findings to be posted to Twitter.

Taibbi later deleted a tweet showing Jack Dorsey’s email address

Taibbi’s thread includes screenshots of emails between Twitter’s leadership, members of the Biden campaign, and outside policy leaders. At one point, there’s even a “confidential” communication from Twitter’s deputy general counsel.

The emails show Twitter’s team struggling with how to explain their handling of the New York Post story that broke the news of Hunter’s leaked laptop files — and whether they made the correct moderation decision in the first place. At the time, it was not clear if the materials were genuine, and Twitter decided to ban links to or images of the Post’s story, citing its policy on the distribution of hacked materials. The move was controversial even then, primarily among Republicans but also with speech advocates worried about Twitter’s decision to block a news outlet.

While Musk might be hoping we see documents showing Twitter’s (largely former) staffers nefariously deciding to act in a way that helped now-President Joe Biden, the communications mostly show a team debating how to finalize and communicate a difficult moderation decision.

“I’m struggling to understand the policy basis for marking this unsafe,” one former communications staffer wrote. “Will we also mark similar stories as unsafe?” asked another.

Yoel Roth, Twitter’s head of trust and safety at the time, said the company had decided to err on the side of caution “given the SEVERE risks here and lessons of 2016.” Jim Baker, Twitter’s deputy general counsel, weighed in to agree that “it is reasonable for us to assume that they may have been [hacked] and that caution is warranted.”

The emails don’t show how the initial decision was reached — just that there were emails afterward in which leaders at Twitter discussed whether it was the correct choice. Taibbi reports that Jack Dorsey, who was then Twitter’s CEO, was not aware of the decision.

Musk seems to read the events as proof of government meddling. “If this isn’t a violation of the Constitution’s First Amendment, what is?” he wrote in response to one leaked email. But the email appears to show the Biden campaign, which is not a government entity, flagging tweets to Twitter for “review” under their moderation policies before the election took place. Taibbi says, “there’s no evidence — that I’ve seen — of any government involvement in the laptop story.”

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“‘Furthering false narratives’: Lake, Finchem lawsuit draws sanction order from judge”

chicanery, fraudulent fraud squad

Arizona Republic:

In a blistering 30-page opinion, a federal judge ordered sanctions against the attorneys of Kari Lake and Mark Finchem in their lawsuit against voting machines, hoping to deter “similarly baseless suits in the future.”

Lake and Finchem, Trump-endorsed Republicans who failed in their bids for governor and secretary of state, filed suit in April in an attempt to block Maricopa and Pima counties from using any electronic device to cast or count votes. They asked the court to order the counties to require paper ballots and conduct a hand count of all the ballots cast.

U.S. District Court Judge John Tuchi dismissed the suit in August, calling it full of “conjectural allegations of potential injuries.”

Before the dismissal, the five members of the Republican-dominated Maricopa County Board of Supervisors — the defendants in the case — had asked for sanctions for the “numerous false allegations about Arizona elections” the candidates and their attorneys made in their federal complaint.

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